Increasing Number of Couples Seeking Advice on Pre-Nups

Once the preserve of the super-rich, pre-nups are becoming increasingly common across the UK, as couples seek to protect their assets in contemplation of marriage breakdown. While the Law Commission has recommended that such pre-nuptial contracts should be legally binding, prominent legal figures have raised concerns about how they are being used.

Law Commission approval

A prenuptial agreement is a contract entered into before a couple gets married, which outlines how they would like to divide their money and property, should the marriage end in divorce. The agreements seek to cover a range of eventualities, with some additionally contemplating childcare arrangements should parents separate.

Currently such contracts are not considered formally binding in English courts: couples can enter into them, but it is not always certain whether a judge would uphold the terms of the agreement. The uncertainty as to their enforceability has meant that pre-nups have long been considered as the preserve of the super-rich or famous, who are willing to spend more money trying to protect their extensive assets.

However, in February 2014, the Law Commission recommended that such agreements between couples should be binding to allow them the power to make their own financial decisions. It is widely considered that this approval is the reason for an increasing number of “ordinary” couples seeking legal advice as to whether a pre-nup could be useful for them.

“Sensible” to give couples the power to plan their finances

Ministers are currently looking at how to implement the Law Commission’s recommendations, with justice secretary Christopher Grayling saying he considers the enforceability of pre-nups “sensible”. It is widely asserted that as the financial issues have been contemplated beforehand, such agreements can cut the costs associated with divorce, along with reducing the stress of protracted negotiations after a couple have separated. Pre-nups prove particularly useful in second or subsequent marriages, where there are children from a previous relationship whose financial interests need to be considered, or where a one of the couple comes into some money from a family inheritance, a compensation pay out or even a lottery win.

Professor Elizabeth Cooke, Law Commissioner for property, family and trust law has praised the use of agreements between couples saying:

“Qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable. We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state.”

However, not all of the legal profession supports the proposed legal reform to ensure that pre-nups are enforceable in courts. One of the UK’s most senior family judges, Baroness Hale of Richmond, has recently aired her concerns saying she was “very suspicious of premarital agreements”. She said that the purpose of them was “almost always to give somebody less than they would otherwise be entitled to”.

With the potential to reduce the costs and difficulties of separation and enable a fair distribution of assets, pre-nups can give couples the power to plan for the future on their own terms. And although not the most romantic of topics before the big day, it is important to obtain independent legal advice and consider what the agreement should contain and how best to implement financial arrangements to ensure fairness between the couple.

If you would like to discuss any aspect of family law, are considering divorce proceedings or a trial separation, or want to draw up a pre or post-nuptial agreement, call our mediation, divorce and family dispute resolution solicitors in absolute confidence on 01494 790058 or 01494 790047. Alternatively, email us at familylaw@ibblaw.co.uk.

We can provide initial short family law consultations at a reduced fixed fee, where our expert advisors will be able to give you initial guidance on ways to resolve family disputes, either through mediation or individual representation. We will always provide you with cost estimates at the start and throughout your case.